On June 25, 2018, the Supreme Court upheld a Second Circuit opinion that American Express did not violate antitrust law by prohibiting merchants from encouraging customers to use non-American Express credit cards. As part of their agreements with American Express, merchants were required not to steer customers to use non-American Express credit cards (merchants could still express a preference for cash, checks or debit cards). The state of Ohio, the United States, and several other states brought suit alleging that these “anti-steering” provisions violated Section 1 of the Sherman Act as an “unreasonable restraint of trade.” The Supreme Court opined that the relevant market in which to assess the anti-steering provisions is two-sided; that is, courts must consider competitive effects and benefits on both the consumer payments and payment processing sides of the transactions.
Bumble Bee Foods’ woes continue to mount as its CEO, Christopher Lischewski, has been indicted for price fixing. The indictment alleges that Lischewski participated in the price fixing conspiracy from approximately November 2010 until about December 2013. Lischewski is not the first Bumble Bee executive to be charged: in late 2016 and early 2017, two Bumble Bee Senior Vice Presidents pled guilty to price fixing, and in May 2017, Bumble Bee agreed to pay $25 million in fines for price fixing. Continue Reading Bumble Bee CEO Indicted over Price Fixing Allegations
Recently, President Trump announced that he sent names of four nominees to serve as commissioners on the five-member Federal Trade Commission (“FTC”) to the Senate for approval. If all four of the nominees are confirmed, it will still leave one remaining vacant seat on the FTC, which has been operating as a bipartisan two-member interim agency since early last year. The nominees, three of whom were announced last fall, consist of three Republicans—Joseph Simons, Noah Phillips and Christine Wilson—and one Democrat, Rohit Chopra. Continue Reading President Trump Sends Four FTC Nominees to Senate for Approval
On January 18, 2018, Hunton & Williams LLP’s retail industry lawyers, composed of more than 100 lawyers across practices, released their annual Retail Year in Review publication. The Retail Year in Review includes many topics of interest to retailers including blockchain, antitrust enforcement in the Trump Administration, ransomware’s impact on the retail industry, SEC and M&A activity in 2017, cyber insurance, vulnerability to class actions, and the reduced tax rate.
As consumers celebrated lower avocado prices at Whole Foods during the last week in August, views were mixed regarding the FTC’s decision not to challenge the Amazon/Whole Foods merger.
On August 23, 2017, the FTC’s Bureau of Competition issued a short statement that read, in its entirety: “The FTC conducted an investigation of this proposed acquisition to determine whether it substantially lessened competition under Section 7 of the Clayton Act, or constituted an unfair method of competition under Section 5 of the FTC Act. Based on our investigation we have decided not to pursue this matter further. Of course, the FTC always has the ability to investigate anticompetitive conduct should such action be warranted.”
In the early 1990s, before everyone could instantly buy almost anything from their smartphone, the proposed combination of QVC network and Home Shopping Network (“HSN”) reportedly was shuttered due to antitrust concerns.
Continue Reading What Once Was Old Is New Again: QVC and HSN Announce Merger Plans 25 Years After Last Attempt
On April 19, 2017, the Federal Trade Commission issued warnings to more than 90 brands and “influencers” that their social media posts should more clearly and conspicuously disclose brand connections. The warning letters follow petitions filed by consumer advocacy groups aimed at influencer advertising on Instagram. The FTC’s warning letters show that the agency is committed to capitalizing on its recent enforcement actions against brands and influencers, and will continue to scrutinize social media compliance with the Endorsement Guides.
On April 3, 2017, the Antitrust Division of the U.S. Department of Justice announced that it completed its review of Danone S.A.’s acquisition of The WhiteWave Foods Company Inc. (“WhiteWave”). In order to allow the $12.5 billion acquisition to proceed, the Antitrust Division is requiring Danone to divest the Stonyfield Farms business to an independent buyer approved by the U.S. government. Continue Reading DOJ Completes Review of Danone/WhiteWave Merger, Requires Divestitures
When a merger raises competitive concerns, the Federal Trade Commission or Antitrust Division of the U.S. Department of Justice may require remedies or conditions before the proposed transaction can proceed. Such remedies may be structural, which require the divestiture of business units to a third-party buyer, and/or behavioral, which require a binding commitment regarding the future behavior of the merged firm. Continue Reading FTC Issues Staff Study on the Effectiveness of Merger Remedies from 2006-2012
Gearing Up For Change in Antitrust Merger Enforcement
“Litigation readiness” was the unofficial theme of antitrust enforcement at the Antitrust Division of the U.S. Department of Justice and the Federal Trade Commission over the past eight years. Although determining whether this “litigation readiness” actually resulted in the two antitrust enforcement agencies’ bringing more merger cases than we might have otherwise seen is a complicated question, the practical effect was that deal review took longer, faced increased scrutiny, involved more non-parties, was more expensive and faced more uncertainty than in prior administrations. These effects were evident in the recent number of large-scale, high-profile litigated deals involving retail and consumer products companies, including the FTC’s challenges to the proposed mergers of Staples/Office Depot, Sysco/U.S. Foods and Dollar Tree/Family Dollar, and the Antitrust Division’s challenge to the proposed acquisition of GE’s appliances business by Electrolux. Continue Reading Antitrust Merger Enforcement in the Retail Sector